The SDFLA Blog is dedicated to providing news and notes regarding federal practice in the Southern District of Florida. The New Times calls the blog "the definitive source on South Florida's federal court system." All tips on court happenings are welcome and will remain anonymous. Please email David Markus at dmarkus@markuslaw.com

Thursday, June 04, 2009

"We asked that question of the attorneys at oral argument, and once they got past the deer-in-the-headlights moment..."

Here's the issue: This appeal turns on whether the transfer of a pollutant from one navigablebody of water to another is a “discharge of a pollutant” within the meaning of theClean Water Act, 33 U.S.C. § 1362(12).

No way to turn that into a fun opinion to read, right? Wrong. Right up front he's quoting a country singer: “But progress came and took its toll, and in the name of flood control, they made their plans and they drained the land.” John Anderson, “Seminole Wind,” on Seminole Wind (BMG Records 1992).

How's the water in those canals around the Lake? The area south of Lake Okeechobee’s shoreline was designated the Everglades Agricultural Area. The Corps dug canals there to collect rainwater and runoff from the sugar fields and the surrounding industrial and residential areas. Not surprisingly, those canals contain a loathsome concoction of chemical contaminants including nitrogen, phosphorous, and un-ionized ammonia.

Not the impression you want to make at oral argument: We begin with the cross-appeal, which contests the dismissal of the Water District on Eleventh Amendment immunity grounds. The parties disagree mightily about this issue and had gotten so wrapped up in the arguments about it that none of them had stepped back to ask why it matters. We asked that question of the attorneys at oral argument, and oncethey got past the deer-in-the-headlights moment they could offer no good reason why we, or they, should care if the Water District is in or out of this lawsuit. We believe that it does not matter at all.

The supplement filed after oral argument wasn't much better. A "sic" and getting mocked for using the third person: Two-and-a-half weeks after oral argument, however, we received a supplemental letter from attorney Nutt in which, referring to himself in the third person, he stated: “The Executive Director’s counsel did not have an opportunity to address the Court’s question, posed at the very end, whether the remedies available against the Executive Director through the fiction of Young are the same as the remedies available as [sic] against the District were it not immune. They are not.” The belated letter is not helpful.

More fun stuff: To decide questions that do not matter to the disposition of a case is to separate Lady Justice’s scales from her sword. That we will not do. Cf. George E. Allen, The Law as a Way of Life, 27 (1969) (“The scales of justice without the sword is the impotence of law.”).

What's an opinion if there aren't some baseball references: The unitary waters theory has a low batting average. In fact, it has struck out in every court of appeals where it has come up to the plate. … The Court has not, however, called the theory out yet. … The Friends of the Everglades, arguing against ambiguity, pitch us other decisions. … Deciding how best to construe statutory language is not the same thing as deciding whether a particular construction is within the ballpark of reasonableness. … None of the decisions the parties have thrown our way helps either side much.

Have you lost your marbles yet? Sometimes it is helpful to strip a legal question of the contentious policy interests attached to it and think about it in the abstract using a hypothetical. Consider the issue this way: Two buckets sit side by side, one with four marbles in it and the other with none. There is a rule prohibiting “any addition of any marbles to buckets by any person.” A person comes along, picks up two marbles from the first bucket, and drops them into the second bucket. Has the marblemover “add[ed] any marbles to buckets”? On one hand, as the Friends of the Everglades might argue, there are now two marbles in a bucket where there were none before, so an addition of marbles has occurred. On the other hand, as the Water District might argue and as the EPA would decide, there were four marbles in buckets before, and there are still four marbles in buckets, so no addition of marbles has occurred. Whatever position we might take if we had to pick one side or the other of the issue, we cannot say that either side is unreasonable.

10 comments:

Anonymous
said...

Interesting post David, but you neglected to say the Judge found that the pollution in the canals can now be spread to the remainder of the everglades.

Given that this effects us all -- people who dive in the keys, to the folks who swim on our beaches (don't forget that the cocktail floats north in the gulf stream after seeping over the reefs where the everglades dump out in the keys), we may want to pause and think...

Funny opinion by Carnes, but in very poor taste and reflecting very poor judgment and a total lack of understanding of the effects of the decision. Good to be witty when appropriate, bad to be a smart ass when real people will be hurt. This one falls into the smart ass category.

The Southern District of Florida blog was started by David Oscar Markus, who is a criminal trial and appellate lawyer in Miami, Florida. He frequently practices in federal courts around the country, including his hometown, the Southern District of Florida and the 11th Circuit Court of Appeals. He is a former law clerk to then-Chief Judge of the District, Edward B. Davis.